<a href="http://www.linkedin.com/pub/hunter-lott/12/135/1a5" rel="author">Hunter Lott</a> is an HR consultant dedicated to the rights of management. Check him out at <a href="http://www.pleasesueme.com/">www.PleaseSueMe.com</a> or contact him directly at <a href="mailto:HRHunterLott@gmail.com">HRHunterLott@gmail.com</a> and mention Net32.

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Firing Strategy…


Do you have employees you’re not proud of? Then deal with it!

The “how” of firing is typically not the problem. It’s the “who” and “when” that gets in the way. Business decision makers will tell me about a problem employee and how he/she is a poison to the operation and not living up to minimum performance or behavior standards. They will remind me that they are in an “at-will” state and can fire anyone they want, whenever they want. My response is “OK, what’s stopping you? No, seriously just terminate. Montana is the only state that limits the “at-will” rights of a private, non-union employer, so go ahead.” Apparently the decision maker is taken aback when the HR guy doesn’t start screaming about morale or citing a violation of some regulation that will insure costly litigation. In fact, the numbers show the odds of an employer getting involved in a discrimination case over a firing are pretty slim. Last year EEOC handled 99,412 charges, dropped 67.9% and only filed 122 merit suits.

I can hear a decision maker’s rant on an employee’s poor behavior or read a bad performance evaluation and determine that this employee should be gone. It’s easy for me, or any outsider, because we are not emotionally involved. I did not hire this guy. My kids don’t go to school with this woman’s kids. I don’t go to church with this employee. I’m not going to have to explain the whereabouts of this employee to patients. The problem is not legal…it is emotional. Decision makers do not want to fire.

Firing is something all business decision makers should be good at, but not comfortable with. Good people know who the bad ones are. They know we know and expect us to do something about it. Firing for bad behavior or performance rewards good behavior and performance.

You can feel it. When I meet miserable, grumpy, disengaged employees I don’t blame them. I blame their bosses. I come away determined not to go back and thankful that I don’t have to work around those people every day.

Strategically the “who” is any employee who has fallen below minimum performance or behavior expectations. The “when” is as soon as possible. You may decide that you want to salvage and give the employee a reasonable chance to improve. Just don’t count on the problem to go away by  itself. You’ll know it’s time when your good employees and patients start leaving because they think you don’t care.

It’s not always about performance. The problem may be behavior. You do not have to wait until their behavior affects their performance. Adopt a behavior standard as part of your corporate culture.

Now, do not go back to work and start firing people today. I have a Master’s Degree in Employment Law and I have trained thousands of managers but I am NOT an attorney and do NOT give out legal advice. Part of your decision making process should be to review the situation and any documentation with HR and local legal counsel. You can contact me at HRHunterLott@gmail.com and check out my website PleaseSueMe.com.

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The Employee Handbook

The legal and human resources community continues to promote the virtues of written company policies to a community of unenthusiastic and reluctant small business decision-makers. Small employers could see themselves operating “under the radar,” but the threat of litigation may be the “tipping point” motivation for many small business decision-makers to publish and distribute written polices. The statistics from the states’ civil/human rights agencies, EEOC and even courts, overwhelmingly favor the employer. The results indicate that a small business is unlikely to have a discrimination charge filed against it, much less go to court.

However, the small business decision-maker can be bound by not only what’s in writing but also by his or her spoken word or actions. The employer’s past practices may be enough to hold the decision-maker accountable. According to statistics and legal interpretation, the small business decision-makers will more likely meet their needs and desires to maintain control and stay out of court with, rather than without, well written employee handbook language.

The Literal and Permissive Approach May Be a Flight to Safety

The dilemma for the decision-maker and their legal counsel is that once the necessity of the handbook is agreed upon, how should the language read in order to provide the flexibility and control desired along with the legally defensible protection? Assume that the outsider, judges, juries, state and federal agencies, suspicious of the decision-makers’ motives, will take handbook language as literal. Audit the handbook language from a literal perspective. Any promises made must be kept. Consider permissive language rather than mandatory. It “may” be done rather than it “shall” be done. “A pattern of excessive tardiness ‘could’ lead to disciplinary action up to and including termination” is much more manageable language than “being late to work ‘will’ result in termination.”

A practical real life example is the policy of granting two weeks vacation to all new employees. This looks reasonable on paper. But what happens when a top candidate for a job, an applicant that would be considered an “A” player by the decision-maker, comes to the interview with twenty years experience and wants four weeks of vacation? The decision-maker either violates the handbook policy or turns the prospective employee away. Few employers are going to fail to benefit from hiring an “A” player for two additional weeks vacation. Instead consider writing the vacation policy from a “permissive” methodology to indicate that new employees will start at a “minimum” of two weeks.

But What About Treating Everyone the Same?

For the small business decision-maker, treating the employee with great results, outstanding performance or exemplary behavior the same as the employee with mediocre results sends the wrong message. The mandate from Title VII and the EEOC is not that everyone be treated consistently but that the differentiation not be based on age, sex, race, or any other legally protected characteristic. Equal opportunity does not necessitate equal treatment.

Turn Down the Volume and Simplify the Language

At the very least, handbook language should do no harm. At the very best, the language should inspire new employees, support management at all levels in daily operations, eliminate confusion, ward off lawsuits and provide legal counsel with solid defensible documentation that will stand up to potential legal challenges. Given that a particular jurisdiction may take a contractual interpretation of any handbook language, safety lies in writing simple, permissive policy versus voluminous mandatory procedure. Well-written handbook language can provide the perfect balance of desired decision-maker control, defensible legal context and needed communication to employees.

Disclaimer: This document is intended to help readers consider various issues associated with employment practices and handbook language in the workplace. The author is not engaged in rendering legal advice or professional legal services and no attorney client relationship is created. Anyone who creates company policy with (or without) the use of this document should consult with qualified legal counsel before relying on it. The law is rapidly changing and may vary from jurisdiction to jurisdiction.

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Top 5 HR Mistakes Dentists Make

Not knowing why “A” players should come work for you.

Start at the beginning. Why should “A” players, quality employees, come work for you? Believe me “A” players have choices. The problem now is not finding warm bodies but quality people. Write down 4 reasons why the best people in each job description should come work for you. What separates you from the dentist down the street? My dentist went through an entire re-branding process that involved outsiders including patients; giving feedback on what was working and what needed improvement. It was a good experience before and now it’s even better. He has surrounded himself with great people and as a patient I feel the difference every time I walk in. (This is no small endorsement…when asked about my biggest fear associated with going to the dentist I answered “DEATH”) Don’t waste your time and money trying to hire “A” players if your not an “A” place to work.

Hiring based on qualifications rather than behavior.

It is much easier to fix a performance problem than it is a behavior problem. Nobody has a good or bad “attitude.” Substitute the word “behavior” for “attitude” and interview for specific behavior standards proven successful in your practice. Situational questions are best…”Describe a situation when…” “Give an example of…” If applicants are grumpy or miserable in the interview just wait until you put them on payroll!

Thinking it’s going to be easy to find quality employees in this economy.

At a 9% unemployment rate you can certainly generate applicant traffic into your practice. But don’t think this will make the hiring process easier. Good people are still hard to find. Make sure you focus on those qualifications and behaviors proven successful in your practice. You will have to sort through a lot of “volume” to find that diamond in the rough.

Asking risky questions.

Do not ask questions pertaining to age, sex, race, religion, national origin or disability. Focus on behavior!

Forgetting that you hired someone.

As dumb as this sounds, it is amazing to me how many employers put so much energy in hiring and then act like it’s a surprise when they show up. “Sit with Martha, she will teach you everything she knows, takes about 5 minutes. Got any questions come see me.” Run away! Run away! Why wouldn’t the new employee start looking for another employer immediately? Make sure they have a good first day. Have the party on the first day, not the last day!
Hunter Lott is an HR consultant dedicated to the rights of management. Check him out at www.PleaseSueMe.com or contact him directly at HRHunterLott@gmail.com and mention Net32.

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